dismissed L-1A Case: Window Manufacturing

US. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Ofice ofAdministrative Appeals, MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
File: EAC 08 086 5 1393 
 Office: VERMONT SERVICE CENTER Date: 
Petition: 
 Petition for a Nonimmigrant Worker Pursuant to Section 101(a)(15)(L) of the Immigration 
and Nationality Act, 8 U.S.C. fj 1 lOl(a)(15)(L) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. fj 103.5 for the 
specific requirements. All motions must be submitted to the office that originally decided your case by filing a 
Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 days of the 
decision that the motion seeks to reconsider, as required by 8 C.F.R. fj 103.5(a)(l)(i). 
ief, Administrative Appeals Office 
EAC 08 086 5 1393 
Page 2 
DISCUSSION: The Director, Vermont Service Center, denied the nonimmigrant petition and the matter is 
now before the Administrative Appeals Office (AAO) on appeal. The AAO will dismiss the appeal. 
The petitioner filed this nonimmigrant petition seeking to employ the beneficiary as an L-1A nonimmigrant 
intracompany transferee pursuant to section 1 0 1 (a)( 15)(L) of the Immigration and Nationality Act (the Act), 8 
U.S.C. fj 1101(a)(15)(L). The petitioner, a New Jersey corporation that intends to manufacture and distribute 
a patented window product, claims to be a subsidiary of Yovelle Window, LLC, located in Yehud, Israel. 
The petitioner seeks to employ the beneficiary in the position of production manager in its new office in the 
United States for a period of one year. 
The director denied the petition on three independent and alternative grounds. Specifically, the director 
determined that the petitioner had failed to establish: (1) that the U.S. company and the foreign entity have a 
qualifying relationship; (2) that the beneficiary has been employed in a managerial capacity with a qualifying 
entity for one continuous year during the three years preceding the date the petition was filed; and (3) that the 
beneficiary would be employed by the U.S. company in a primarily managerial or executive capacity within 
one year or that the new office would support such a position within one year. In denying the petition, the 
director emphasized that the petitioner failed to provide most of the information and documentation 
specifically solicited in a request for evidence (WE) issued on February 12,2008. 
The petitioner subsequently filed an appeal. The director declined to treat the appeal as a motion and 
forwarded the appeal to the AAO for review. On appeal, counsel for the petitioner asserts that former counsel 
failed to submit documentation provided to him by the petitioner and foreign entity, and made numerous other 
errors in the preparation of the petition and supporting documents, resulting in the denial of the petition. The 
petitioner submits additional evidence in support of the appeal. 
To establish eligibility for the L-1 nonimmigrant visa classification, the petitioner must meet the criteria 
outlined in section 101(a)(15)(L) of the Act. Specifically, a qualifying organization must have employed the 
beneficiary in a qualifying managerial or executive capacity, or in a specialized knowledge capacity, for one 
continuous year within three years preceding the beneficiary's application for admission into the United 
States. In addition, the beneficiary must seek to enter the United States temporarily to continue rendering his 
or her services to the same employer or a subsidiary or affiliate thereof in a managerial, executive, or 
specialized knowledge capacity. 
The regulation at 8 C.F.R. 9 214.2(1)(3) states that an individual petition filed on Form 1-129 shall be 
accompanied by: 
(i) 
 Evidence that the petitioner and the organization which employed or will employ the 
alien are qualifying organizations as defined in paragraph (l)(l)(ii)(G) of this section. 
(ii) 
 Evidence that the alien will be employed in an executive, managerial, or specialized 
knowledge capacity, including a detailed description of the services to be performed. 
EAC 08 086 5 1393 
Page 3 
(iii) 
 Evidence that the alien has at least one continuous year of full-time employment 
abroad with a qualifying organization within the three years preceding the filing of 
the petition. 
(iv) 
 Evidence that the alien's prior year of employment abroad was in a position that was 
managerial, executive or involved specialized knowledge and that the alien's prior 
education, training, and employment qualifies himher to perform the intended 
services in the United States; however, the work in the United States need not be the 
same work which the alien performed abroad. 
The regulation at 8 C.F.R. 5 214.2(1)(3)(~) also provides that if the petition indicates that the beneficiary is 
coming to the United States as a manager or executive to open or be employed in a new office in the United 
States, the petitioner shall submit evidence that: 
(A) 
 Sufficient physical premises to house the new office have been secured; 
(B) 
 The beneficiary has been employed for one continuous year in the three year period 
preceding the filing of the petition in an executive or managerial capacity and that the 
proposed employment involves executive or managerial authority over the new 
operation; and 
(C) 
 The intended United States operation, within one year of the approval of the petition, 
will support an executive or managerial position as defined in paragraphs (I)(l)(ii)(B) 
or (C) of this section, supported by information regarding: 
(I) 
 The proposed nature of the office describing the scope of the entity, its 
organizational structure, and its financial goals; 
(2) 
 The size of the United States investment and the financial ability of the 
foreign entity to remunerate the beneficiary and to commence doing business 
in the United States; and 
(3) 
 The organizational structure of the foreign entity. 
The first issue addressed by the director is whether the petitioner established that it has a qualifying 
relationship with the foreign entity. To establish a "qualifying relationship" under the Act and the regulations, 
the petitioner must show that the beneficiary's foreign employer and the proposed U.S. employer are the same 
employer (i.e. one entity with "branch" offices), or related as a "parent and subsidiary" or as "affiliates." See 
generally section 101(a)(15)(L) of the Act; 8 C.F.R. 5 214.2(1). 
The pertinent regulations at 8 C.F.R. 5 214.2(1)(l)(ii) define the term "qualifying organization" and related 
terms as follows: 
EAC 08 086 5 1393 
Page 4 
(G) 
 Qualihing organization means a United States or foreign firm, corporation, or other 
legal entity which: 
(1) 
 Meets exactly one of the qualifying relationships specified in the 
definitions of a parent, branch, affiliate or subsidiary specified in 
paragraph (l)(l)(ii) of this section; 
(2) 
 Is or will be doing business (engaging in international trade is not 
required) as an employer in the United States and in at least one other 
country directly or through a parent, branch, affiliate or subsidiary for the 
duration of the alien's stay in the United States as an intracompany 
transferee[.] 
(I) 
 Parent means a firm, corporation, or other legal entity which has subsidiaries. 
(K) 
 Subsidiary means a firm, corporation, or other legal entity of which a parent owns, 
directly or indirectly, more than half of the entity and controls the entity; or owns, 
directly or indirectly, half of the entity and controls the entity; or owns, directly or 
indirectly, 50 percent of a 50-50 joint venture and has equal control and veto power 
over the entity; or owns, directly or indirectly, less than half of the entity, but in fact 
controls the entity. 
The petitioner stated on Form 1-129 that it is a subsidiary of "Yovelle Window, LLC," located in Yehud, 
Israel, and that the foreign entity owns 60 percent of its stock. In a letter dated January 28, 2008, the 
petitioner stated that the U.S. company "has joint ventured" with the foreign entity. 
In support of the petition, the petitioner submitted a copy of its certificate of incorporation, which indicates 
that the company was established in New Jersey on April 2, 2007 and is authorized to issue 600 shares 
without par value. 
The petitioner also submitted an unsigned copy of a shareholder agreement between 
 Yovelle 
Windows, LLC and the petitioner, dated June 13, 2007. The agreement does not indicate the total number of 
shares issued to and the foreign entity. The agreement does contain the following provision: 
Management of the Corporation 
7. The Board will consist of a number of directors equal to the number of Shareholders 
however, only will be entitled to appoint one person to the Board and 
will have the sole right to remove and replace such appointee. As such - 
EAC 08 086 5 1393 
Page 5 
shall have the unilateral right to make any and all management decisions on behalf of the 
corporation. 
The agreement indicates that 
 will hold the offices of president, vice president, treasurer and 
secretary of the company through July 1,2008. 
The director issued a request for additional evidence on February 12, 2008, in which he requested that the 
petitioner submit additional documentation to establish the ownership and control of the petitioning and 
foreign entities, including copies of all share certificates, stock ledgers, joint venture agreements, articles of 
incorporation, or any other relevant evidence. The director also requested copies of canceled checks, letters 
of credit, monetary transfers, etc. that were used by the foreign entity to fund the incorporation of the U.S. 
company. 
In a response received on May 9, 2008, the petitioner re-submitted a signed copy of the above-referenced 
shareholder agreement and the petitioner's certificate of incorporation. The petitioner also submitted a 
document labeled "business plan" which appears to be the joint venture agreement between the foreign and 
U.S. entities. The agreement, dated June 17, 2007, indicates that the foreign entity "hereby agrees to purchase 
50% of all outstanding stock in [the petitioning company] for the sum of $100,000.00, the payment of which 
shall be secured by a promissory note guaranteed by 
I' 
The agreement states that "the parties create a joint venture for the sole purpose of manufacturing [the foreign 
entity's patented window product] in its present state of development and selling it throughout the United 
States." The agreement further indicates that the U.S. entity "shall have full authority to manage the entire 
venture, using its own facilities and employees," while "will participate in active 
prosecution of the venture only as a general consultant." The agreement states that net profits and losses from 
the venture will be divided equally between the companies for units sold of the product. The joint venture was 
to continue for an initial term of 3 years, and "may be terminated by either party at any time on 12 weeks 
written notice to the other party." The petitioner did not submit copies of the U.S. company's stock 
certificates, stock transfer, or other evidence of the ownership and control of the company, nor did it provide 
evidence that the foreign entity had funded the U.S. company. 
The director denied the petition on May 22, 2008, concluding that the petitioner failed to establish that the 
U.S. and foreign entities have a qualifying relationship. In denying the petition, the director determined that 
the petitioner had not established that the two companies have established a 50-50 joint venture in which both 
companies have equal control and veto power over the entity, as contemplated by the regulatory definition of 
"subsidiary" at 8 C.F.R. $ 214.2(1)(l)(ii)(K). Rather, the director determined that it appears that the entities 
established a "non-equity joint venture," a contractual arrangement in which one or more of the contributing 
companies provides non-capital resources, such as manufacturing processes, patents, or other essential 
contributions. The director further noted that the petitioner failed to provide the requested copies of its stock 
certificates, stock transfer ledgers, or other evidence of ownership and control specifically requested in the 
RFE. 
EAC 08 086 5 1393 
Page 6 
On appeal, counsel for the petitioner asserts that the director "reached an erroneous conclusion regarding the 
relationship between the foreign company and the U.S. entity due to considerable errors made by [the 
petitioner's] previous attorney." Counsel alleges that the petitioner received faulty advice and incompetent 
representation from both a business attorney and former immigration counsel. 
Counsel asserts that the beneficiary's foreign employer and the petitioner's parent company is "Halonot 
Hayovel, Ltd.," and that the name was translated literally to "Yovelle Windows, LLC" in some of the 
submitted documentation. Counsel asserts that neither the joint venture agreement nor the shareholder 
agreement accurately reflects the true intentions of the parties, and that they are "now revising these 
documents." 
In support of the appeal, the petitioner submits a declaration from who states that he "never 
intended to manage the operations of the new venture," but instead sees himself as an "investor and 
promoter." He indicates that the parties agreed that the beneficiary would be responsible for managing the 
operations of the new company, and had understood that "all corporate documents would be amended as soon 
as [the beneficiary] had permission to work." He states that the shareholder agreement "placed me as the sole 
board member and only person in power at the company solely for the convenience of filing those documents 
quickly." also states that the petitioner's former counsel failed to advise the petitioner that he had 
received a request for evidence until the date on which the petitioner's response was due. Finally, he states 
that the petitioner now understands that all of the items requested in the RFE should have been submitted with 
the original petition and that "it all could have been arranged quite easily" had the petitioner received proper 
advice from counsel. requests that USCIS reopen the case and allow the petitioner to present the 
necessary documents. 
The petitioner also submits a letter dated July 10, 2008 from 
 who states the following 
with respect to the agreement between the U.S. and foreign entities: 
We told the lawyer that wrote up the agreement that I do not wish to have any personal 
involvement and asked him to write that into the agreement. What he did was that he wrote 
that will run the business all by himself with no involvement from [the foreign 
entity]. But that was NOT what we asked for. [The beneficiary], who managed the business 
for me for so many years, is going to be the one involved for [the foreign entity], not me. We 
re-wrote the agreement to make that absolutely clear. The lawyer sent the original draft with 
the L1 application, apparently without enough knowledge of immigration law to understand 
what he was doing. 
further states that the petitioner owns 60 percent of the shares in the U.S. company, while Mr. 
percent of the shares. 
Upon review, and for the reasons discussed herein, the petitioner has not established that the U.S. and foreign 
entities have a qualifying relationship. 
EAC 08 086 51393 
Page 7 
As a preliminary matter, the AAO notes that any appeal or motion based upon a claim of ineffective 
assistance of counsel requires: (1) that the claim be supported by an affidavit of the allegedly aggrieved 
respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions 
to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that 
counsel whose integrity or competence is being impugned be informed of the allegations leveled against him 
and be given an opportunity to respond, and (3) that the appeal or motion reflect whether a complaint has 
been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal 
responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), affd, 857 F.2d 10 (1st 
Cir. 1988). The petitioner has not provided evidence that its former counsel has been informed of the 
allegations leveled against him and been given an opportunity to respond, nor does the appeal reflect whether 
a complaint has been filed with appropriate disciplinary authorities. Thus, the petitioner has not adequately 
supported its claim that it received ineffective assistance from former counsel. 
The regulation and case law confirm that ownership and control are the factors that must be examined in 
determining whether a qualifying relationship exists between United States and foreign entities for purposes 
of this visa classification. Matter of Church Scientology International, 19 I&N Dec. 593 (BIA 1988); see also 
Matter of Siemens Medical Systems, Inc., 19 I&N Dec. 362 (BIA 1986); Matter of Hughes, 18 I&N Dec. 289 
(Comm. 1982). In the context of this visa petition, ownership refers to the direct or indirect legal right of 
possession of the assets of an entity with full power and authority to control; control means the direct or 
indirect legal right and authority to direct the establishment, management, and operations of an entity. Matter 
of Church Scientology International, 19 I&N Dec. at 595. 
As general evidence of a petitioner's claimed qualifying relationship, stock certificates alone are not sufficient 
evidence to determine whether a stockholder maintains ownership and control of a corporate entity. The 
corporate stock certificate ledger, stock certificate registry, corporate bylaws, and the minutes of relevant 
annual shareholder meetings must also be examined to determine the total number of shares issued, the exact 
number issued to the shareholder, and the subsequent percentage ownership and its effect on corporate 
control. Additionally, a petitioning company must disclose all agreements relating to the voting of shares, the 
distribution of profit, the management and direction of the subsidiary, and any other factor affecting actual 
control of the entity. See Matter of Siemens Medical Systems, Inc., supra. Without full disclosure of all 
relevant documents, USCIS is unable to determine the elements of ownership and control. 
As noted by the director, and acknowledged by counsel, the record does not contain sufficient documentary 
evidence of the ownership and control of the petitioning company. The petitioner claims to own a 60 percent 
interest in the petitioning company, and the joint venture agreement indicates that the foreign entity owns a 50 
percent interest in the U.S. company, which was acquired in exchange for $100,000. While the petitioner and 
foreign entity now state that the joint venture agreement does not adequately reflect the parties' intentions 
with respect to the management of the U.S. entity, neither has specifically stated that the joint venture 
agreement inaccurately reflects the ownership structure of the entity. Thus the foreign entity's actual 
ownership interest in the U.S. company remains uncertain. It is incumbent upon the petitioner to resolve any 
inconsistencies in the record by independent objective evidence. Any attempt to explain or reconcile such 
inconsistencies will not suffice unless the petitioner submits competent objective evidence pointing to where 
the truth lies. Matter of Ho, 19 I&N Dec. 582, 59 1-92 (BIA 1988). 
EAC 08 086 51393 
Page 8 
The petitioner acknowledges that it is now aware of the documentation required to establish a qualifying 
relationship, yet it has failed to supplement the record on appeal with copies of its stock certificates, stock 
ledger and evidence that the foreign entity actually paid for its claimed ownership interest in the U.S. entity. 
Moreover, the petitioner has provided no explanation for its failure to submit the requested stock certificates, 
stock ledger and other documents on appeal. Going on record without supporting documentary evidence is not 
sufficient for purposes of meeting the burden of proof in these proceedings. Matter of Soflci, 22 I&N Dec. 
158, 165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 
1972)). The non-existence or other unavailability of required evidence creates a presumption of ineligibility. 
8 C.F.R. 5 103.2(b)(2)(i). The foreign entity's actual ownership interest in the U.S. entity remains entirely 
unsubstantiated. For this reason alone, it cannot be concluded that the two companies have a qualifying 
relationship. 
Instead, the petitioner requests that the AAO reopen the matter and allow the petitioner an opportunity to 
submit the required evidence. As the petitioner did not properly document its claim of ineffective assistance 
of counsel, and as the director's notice of decision provided adequate notice of the evidentiary deficiencies in 
this matter, the AAO will not remand the petition to the director to allow the petitioner the opportunity to 
submit additional evidence. If the petitioner has additional evidence for consideration, it should have 
submitted such evidence in support of the appeal. 
Furthermore, counsel and the petitioner readily acknowledge that the evidence submitted to date was 
inadequate to demonstrate the claimed qualifying relationship, and suggest that the petitioner is still in the 
process of making corrections to critical documents such as its shareholder agreement and joint venture 
agreement. The AAO concurs with the director's determination that the minimal evidence submitted in 
support of the petition suggested that the companies do not have a qualifying joint venture relationship 
because the foreign entity would lack the requisite equal control over the management of the company. 
Finally, the AAO emphasizes that the petitioner must establish eligibility at the time of filing the 
nonimmigrant visa petition. A visa petition may not be approved at a future date after the petitioner or 
beneficiary becomes eligible under a new set of facts. Matter of Michelin Tire Corp., 17 I&N Dec. 248 (Reg. 
Comm. 1978). A petitioner may not make material changes to a petition in an effort to make a deficient 
petition conform to USCIS requirements. See Matter of bummi, 22 I&N Dec. 169, 176 (Assoc. Comm. 1998). 
If significant changes are made to the initial request for approval, the petitioner must file a new petition rather 
than seek approval of a petition that is not supported by the facts in the record. 
Based on the foregoing discussion, the petitioner has not established that it has a qualifying relationship with 
the foreign entity. Accordingly, the appeal will be dismissed. 
The second issue addressed by the director is whether the petitioner established that the beneficiary has been 
employed by the foreign entity for one continuous year in the three-year period preceding the filing of the 
petition in an executive or managerial capacity. See 8 C.F.R. 5 214.2(1)(3)(v)(B). 
'EAC 08 086 51393 
Page 9 
Section 101(a)(44)(A) of the Act, 8 U.S.C. 5 1 101(a)(44)(A), defines the term "managerial capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 manages the organization, or a department, subdivision, function, or component of 
the organization; 
(ii) 
 supervises and controls the work of other supervisory, professional, or managerial 
employees, or manages an essential function within the organization, or a department 
or subdivision of the organization; 
(iii) 
 if another employee or other employees are directly supervised, has the authority to 
hire and fire or recommend those as well as other personnel actions (such as 
promotion and leave authorization), or if no other employee is directly supervised, 
functions at a senior level within the organizational hierarchy or with respect to the 
function managed; and 
(iv) 
 exercises discretion over the day to day operations of the activity or function for 
which the employee has authority. A first line supervisor is not considered to be 
acting in a managerial capacity merely by virtue of the supervisor's supervisory 
duties unless the employees supervised are professional. 
Section 10 1 (a)(44)(B) of the Act, 8 U.S.C. 9 1 10 l(a)(44)(B), defines the term "executive capacity" as an 
assignment within an organization in which the employee primarily: 
(i) 
 directs the management of the organization or a major component or function of the 
organization; 
(ii) 
 establishes the goals and policies of the organization, component, or function; 
(iii) 
 exercises wide latitude in discretionary decision making; and 
(iv) 
 receives only general supervision or direction from higher level executives, the board 
of directors, or stockholders of the organization. 
The instant petition was filed on January 31, 2008. The petitioner indicated on the L Classification 
Supplement to Form 1-129 the beneficiary has been employed by the foreign entity since January 2003. In its 
letter dated January 28, 2008, the petitioner stated that the beneficiary served as area manager of the foreign 
entity responsible for "accounts, marketing decisions, sales goals, promotion of the product line, handling 
distribution systems and overseeing the manufacture, assembly and production of the window systems." 
In the request for evidence issued on February 12, 2008, the director requested: (1) a letter from the foreign 
employer describing the nature of the beneficiary's employment, including a complete position description, 
dates of employment and all positions held; (2) a description of the typical managerial responsibilities 
'EAC 08 086 5 1393 
Page 10 
performed by the beneficiary during his employment abroad, accompanied by documentary evidence of his 
managerial decisions; (3) an organizational chart for the foreign entity; (4) complete position descriptions for 
all of the foreign entity's employees; (5) a copy of the beneficiary's last annual tax return and tax withholding 
statement reflecting the employer; (6) copies of payroll documents reflecting the beneficiary's period of 
employment and salary; and (7) other unequivocal evidence establishing the foreign employment by the 
beneficiary. 
In response, the petitioner submitted copies of the beneficiary's Israeli income tax withholding reports for the 
years 1999 through 2005, with English translations. The reports for 1999 through 2004 identify the 
beneficiary's employer as "Halonot Hayovel Ltd." and the report for 2005 identifies the beneficiary's 
employer as "Olbright Venetian Shields Ltd." It appears that the petitioner submitted a report for 2006, but 
did not provide an English translation for that document. 
The director denied the petition, concluding that the petitioner failed to establish that the beneficiary has been 
employed by the foreign employer for one continuous year within the three years preceding the filing of the 
petition. The director noted that the submitted documentation does not reflect "Yovelle Windows, LLC" as 
the beneficiary's foreign employer. The director further determined that the petitioner failed to submit 
evidence that the beneficiary was employed abroad in a primarily managerial or executive capacity, based on 
the petitioner's failure to submit the evidence requested in the RFE. 
On appeal, counsel for the petitioner asserts that "Yovelle Windows" is a literal translation of "Halonot 
Hayovel Ltd.," and therefore the evidence reflects that the beneficiary was employed by the foreign entity. As 
noted above, the petitioner claims that it was unaware that the director had requested additional evidence 
regarding the beneficiary's foreign employment until the day the RFE response was due. The petitioner states 
that the beneficiary has been managing the foreign entity since its inception. 
The petitioner submits new translations of the same Israeli income tax statements previously provided in 
response to the RFE. The new English translations indicate that the beneficiary was employed by "Khalonot 
Hayovel Ltd." from 2000 until 2006. The petitioner also submits a copy of current business licenses issued to 
"Khalonot Hayovel Ltd." in April 2007. The AAO notes that these documents identify the company's 
identification number as and the same company identification number appears on each of the 
translated income tax statements submitted. However, a review of the original tax documents reveals that this 
company number appears on the tax statements for the years 2000 through 2004. However, the company 
identification number on the beneficiary's tax statements for 2005 and 2006 is " As noted above, 
the previously submitted translation of the beneficiary's 2005 tax statement identified the name of his foreign 
employer as "Olbright Venetian Shilds Ltd." 
The petitioner also submits a letter from , who states that he is the owner of "Yovel 
windows also known as ." He provides additional information regarding the beneficiary's 
duties with the foreign entity as follows: 
In 1998, I opened 
 to manufacture and market my invention. Like with the 
other companies, my son, [the beneficiary] managed all aspects of the business from 
EAC 08 086 5 1393 
Page 11 
supervising the manufacturing to negotiating contracts. We had four manufacturing 
employees, an accountant, a bookkeeper, and a tax advisor. [The beneficiary] was in charge 
of all of them and reported to me. He was also responsible for getting the product line to the 
market, showing it to developers, architects, contractors, etc. negotiating prices, receiving 
orders, making sure that the orders were filled on time and without defects and shipped on 
time. 
indicates that in 2004, his company was approached by Holis Metal Industries, Ltd. a larger 
window and door manufacturing company, which was subsequently granted a license to manufacture and 
market the foreign entity's product in Europe and Israel. He further stated: 
A condition in our contract with Holis is that [the beneficiary] must teach and train their staff 
in the manufacturing process, installation, and customer support since no one knows the 
product better than him now. Every contractor that purchases the product from Holis has to 
come to Israel to get trained by [the beneficiary]. [The beneficiary] supervised Holis' 
operations in connection with my product. 
The petitioner also submits a letter from 
 of Holis Ltd., who confirms that the beneficiary has 
been providing his company and staff with training, technical advice and other services as part of its contract 
with - 
Finally, the petitioner submitted an organizational chart for the foreign entity, which depicts the beneficiary as 
general manager and plant manager, supervising four manufacturing employees, a bookkeeper, and two 
accounting employees. 
Upon review, the petitioner has not established that the beneficiary has been employed by the foreign entity in 
a primarily managerial or executive capacity for one continuous year in the three years prior to the filing of 
the petition. 
As stated above, the petitioner must establish that the beneficiary was employed by the foreign entity for one 
continuous year during the three years preceding the filing of the petition. The record shows that during the year 
immediately preceding the filing of the petition, fiom February 1, 2007 until January 3 1, 2008, the beneficiary 
was in the United States as a visitor for pleasure in B-2 status. 
The petitioner has not provided sufficient evidence to establish that the beneficiary was employed by the foreign 
entity during 2005 or 2006. As noted above, the petitioner has submitted two different translations of the same 
income tax statements, which identify different employers during this period of time. It is incumbent upon the 
petitioner to resolve any inconsistencies in the record by independent objective evidence. Any attempt to 
explain or reconcile such inconsistencies will not suffice unless the petitioner submits competent objective 
evidence pointing to where the truth lies. Matter of Ho, 19 I&N Dec. 582, 591-92 (BIA 1988). 
The AAO is not in a position to determine which translation is correct. The director specifically noted in his 
decision that the beneficiary's tax statements identify his foreign employers as "Halonot Hayovel Ltd." and 
EAC 08 086 51393 
Page 12 
"Olbright Venetian Shields, Ltd." The petitioner has submitted a reasonable explanation and the AAO is 
satisfied that Halonot Hayovel Ltd. and "Yovelle Windows" are in fact the same company. The petitioner has 
provided no explanation as to why the beneficiary's tax statements would identify his foreign employer as 
"Olbright Venetian Shields" in 2005. This omission, when considered with the above-referenced discrepancy 
in the company identification numbers reported in the original tax statements, makes it impossible for the 
AAO to conclude that the beneficiary was employed by the foreign entity for one continuous year during the 
relevant time period. For this additional reason, the appeal will be dismissed. 
Furthermore, even if the petitioner had established that the beneficiary was employed by the foreign entity 
during the requisite time period, the record is lacking in evidence that his duties were primarily managerial or 
executive in nature. 
When examining the executive or managerial capacity of the beneficiary, the AAO will look first to the 
petitioner's description of the job duties. See 8 C.F.R. 5 214.2(1)(3)(ii). The petitioner's description of the job 
duties must clearly describe the duties to be performed by the beneficiary and indicate whether such duties are 
either in an executive or managerial capacity. Id. 
The definitions of executive and managerial capacity have two parts. First, the petitioner must show that the 
beneficiary performs the high-level responsibilities that are specified in the definitions. Second, the petitioner 
must show that the beneficiary primarily performs these specified responsibilities and does not spend a 
majority of his or her time on day-to-day functions. Champion World, Inc. v. INS, 940 F.2d 1533 (Table), 
1991 WL 144470 (9th Cir. July 30, 1991). The fact that the beneficiary manages a business does not 
necessarily establish eligibility for classification as an intracompany transferee in a managerial or executive 
capacity within the meaning of sections 101(a)(15)(L) of the Act. See 52 Fed. Reg. 5738, 5739-40 (Feb. 26, 
1987) (noting that section 101(a)(15)(L) of the Act does not include any and every type of "manager" or 
"executive"). While the AAO does not doubt that the beneficiary exercised discretion over the foreign 
entity's day-to-day operations and had the appropriate level of authority, the petitioner has failed to show that 
his actual duties were primarily in a managerial or executive capacity. 
Prior to the adjudication of the petition, the beneficiary's position description consisted of the petitioner's 
vague statement that the beneficiary was responsible for "accounts, marketing decisions, sales goals, 
promotion of the product line, handling distribution systems and overseeing the manufacture, assembly and 
production of the window systems." This brief statement provides little insight into the specific managerial or 
executive tasks the beneficiary performed in his position abroad. Reciting the beneficiary's vague job 
responsibilities or broadly-cast business objectives is not sufficient; the regulations require a detailed 
description of the beneficiary's daily job duties. The petitioner has failed to provide any detail or explanation 
of the beneficiary's activities in the course of his daily routine. The actual duties themselves will reveal the 
true nature of the employment. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), afd, 
905 F.2d 41 (2d. Cir. 1990). 
As noted by the director, the petitioner failed to respond to the RFE in which he requested a comprehensive 
description of the beneficiary's duties, an organizational chart depicting the staffing of the foreign entity, and 
' EAC 08 086 51393 
Page 13 
job descriptions for the foreign entity's employees. Any failure to submit requested evidence that precludes a 
material line of inquiry shall be grounds for denying the petition. 8 C.F.R. 5 103.2(b)(14). 
The petitioner now attempts to clarify the duties on appeal, and asserts that the beneficiary "managed all 
aspects of the business from supervising the manufacturing to negotiating contracts" and was also responsible 
for "getting the product line to market," showing it to developers, architects, contractors," as well as 
negotiating prices, receiving orders, and making sure that orders were filled and shipped on time. The 
petitioner indicates that the beneficiary supervised four manufacturing employees, and 
accounting/bookkeeping staff, but it has not provided position descriptions for these employees. Given that 
the petitioner did not employ any sales, marketing, installation or warehouse/distribution staff, the AAO 
cannot conclude that the subordinate staff would have relieved the beneficiary from performing these non- 
managerial duties. Based on the current record, the AAO is unable to determine whether the claimed 
managerial duties constitute the majority of the beneficiary's duties, or whether the beneficiary primarily 
performs non-managerial administrative or operational duties. Although specifically requested by the 
director, the petitioner's description of the beneficiary's job duties does not establish what proportion of the 
beneficiary's duties is managerial in nature, and what proportion is actually non-managerial. See Republic of 
Transkei v. INS, 923 F.2d 175, 177 (D.C. Cir. 1991). 
Furthermore, the letter from 
 submitted on appeal, suggests that the nature of the beneficiary's 
duties changed significantly following the licensing of the foreign entity's product to Holis Metal Industries 
Ltd. in 2004 or 2005. Based on the information provided, it appears that that Holis is now the primary 
manufacturer, marketer and distributor of the product, and the beneficiary's duties have been limited to 
assisting Holis with training employees and contractors and other technical issues associated with the 
manufacture and installation of the products. The petitioner has not explained how such duties fall under the 
statutory definition of managerial or executive capacity, or how the beneficiary qualified as a manager, other 
than in position title. The actual duties themselves reveal the true nature of the employment. Fedin Bros. Co., 
Ltd. v. Sava, 724 F. Supp. 1 103, 1 108 (E.D.N.Y. 1989), affd, 905 F.2d 41 (2d. Cir. 1990). An employee who 
"primarily" performs the tasks necessary to produce a product or to provide services is not considered to be 
"primarily" employed in a managerial or executive capacity. See sections 101(a)(44)(A) and (B) of the Act 
(requiring that one "primarily" perform the enumerated managerial or executive duties); see also Matter of 
Church Scientology Int'l., 19 I&N Dec. 593,604 (Comm. 1988). 
Based on the foregoing discussion, the petitioner has not established that the beneficiary was employed by the 
foreign entity in a primarily managerial or executive capacity, or that he was employed by the foreign entity for 
one continuous year within the three years preceding the filing of the petition. For this additional reason, the 
appeal will be dismissed. 
The third and final issue addressed by the director is whether the petitioner established that the U.S. company 
will employ the beneficiary in a primarily managerial or executive capacity within one year of commencing 
operations, as required by 8 C.F.R. 5 214.2(1)(3)(v)(C). 
When a new business is established and commences operations, the regulations recognize that a designated 
manager or executive responsible for setting up operations will be engaged in a variety of activities not 
EAC 08 086 5 1393 
Page 14 
normally performed by employees at the executive or managerial level and that often the full range of 
managerial responsibility cannot be performed. In order to qualify for L-1 nonimmigrant classification during 
the first year of operations, the regulations require the petitioner to disclose the business plans and the size of 
the United States investment, and thereby establish that the proposed enterprise will support an executive or 
managerial position within one year of the approval of the petition. See 8 C.F.R. 5 214.2(1)(3)(v)(C). This 
evidence should demonstrate a realistic expectation that the enterprise will succeed and rapidly expand as it 
moves away from the developmental stage to full operations, where there would be an actual need for a 
manager or executive who will primarily perform qualifying duties. The petitioner must also establish that 
the beneficiary will have managerial or executive authority over the new operation. See 8 C.F.R. 5 
2 14.2(1)(3)(v)(B). 
As contemplated by the regulations, a comprehensive business plan should contain, at a minimum, a 
description of the business, its products and/or services, and its objectives. See Matter of Ho, 22 I&N Dec. 
206, 213 (Assoc. Comm. 1998). Although the precedent relates to the regulatory requirements for the alien 
entrepreneur immigrant visa classification, Matter of Ho is instructive as to the contents of an acceptable 
business plan: 
The plan should contain a market analysis, including the names of competing businesses and 
their relative strengths and weaknesses, a comparison of the competition's products and 
pricing structures, and a description of the target market/prospective customers of the new 
commercial enterprise. The plan should list the required permits and licenses obtained. If 
applicable, it should describe the manufacturing or production process, the materials required, 
and the supply sources. The plan should detail any contracts executed for the supply of 
materials and/or the distribution of products. It should discuss the marketing strategy of the 
business, including pricing, advertising, and servicing. The plan should set forth the 
business's organizational structure and its personnel's experience. It should explain the 
business's staffing requirements and contain a timetable for hiring, as well as job descriptions 
for all positions. It should contain sales, cost, and income projections and detail the bases 
therefore. Most importantly, the business plan must be credible. 
Id. 
The petitioner indicated on Form 1-129 that the beneficiary will serve in the position of "production manager" 
responsible for overseeing the manufacture of the petitioner's patented window product. The petitioner stated 
that the U.S. company was established in 2007 and has six employees. 
In its letter dated January 28,2008, the petitioner stated that the beneficiary will serve in the position of "U.S. 
Manager" responsible for "development of the market for local sales and installation of their window products 
and the motion of [the petitioner's] product nationwide." The petitioner further stated that the beneficiary will 
perform the following duties: 
This position requires that [the beneficiary] develop local guidelines set by the company, 
including overall marketing plan and philosophies of the joint venture; promote [the 
- EAC 08 086 5 1393 
Page 15 
petitioner's] name to be synonymous with their patented window products; and identify new 
markets for penetration and act as a liaison with distributors to insure that these markets are 
properly accessed; develop marketing strategies to reach both retailers and consumers; 
educate wholesalers' sales teams regarding the characteristics of the product line; oversee 
manufacture, distribution, assembly and inventory control of the product in the United States, 
and maintain regular communications with [the foreign entity] regarding the production and 
transfer of the product. 
In the request for evidence issued on February 12, 2008, the director requested additional evidence pertaining 
to the beneficiary's proposed employment and the evidentiary requirements for new office petitions pursuant 
to 8 C.F.R. tj 214.2(1)(3)(v)(C). Specifically, the director requested: (1) evidence of the financial status of the 
U.S. company, including bank statements, income tax return, and evidence of funding from the foreign entity; 
(2) copies of the petitioner's IRS Forms 941, Employer's Quarterly Federal Tax Return, for the last two 
quarters of 2007; (3) evidence to show how the company will grow to be of sufficient size to support a 
managerial or executive position; (4) a description of the staff of the new office, including the number of 
proposed employees, their job titles and duties, and anticipated salaries and wages; (5) a comprehensive 
description of the beneficiary's proposed duties; and (6) information regarding the number of subordinate 
supervisors to be managed by the beneficiary and the amount of time he will allocate to managerial duties. 
The director denied the petition on May 22, 2008, based on the petitioner's failure to submit the evidence 
requested in the RFE. 
On appeal, the petitioner and counsel claim that the petitioner's former counsel did not timely provide the 
petitioner with notice of the evidence requested. Although the petitioner claims that all of the documents 
required "could have been arranged quite easily," the petitioner has not opted not to provide the additional 
evidence in support of the appeal. The record as presently constituted does not contain a business plan, 
evidence of the current and proposed staffing of the U.S. office, evidence of the size of the investment in the 
U.S. entity and its financial goals, or other evidence to show how the company will grow to support the 
beneficiary in a managerial or executive capacity within one year, as required by 8 C.F.R. tj 214.2(1)(3)(v)(C). 
Again, any failure to submit requested evidence that precludes a material line of inquiry shall be grounds for 
denying the petition. 8 C.F.R. tj 103.2(b)(14). 
The AAO acknowledges that the petitioner has provided a letter dated July 10,2008 from 
 the 
claimed owner of the foreign entity, who states that the beneficiary will be performing the following duties in 
the United States: 
[The beneficiary], on our part, is responsible for working with contractors to adapt the work 
space to our needs - for example, one room must be sterile and free of all dust and debris; 
showing the products to architects, developers and contractors who may use it; getting future 
orders; train the personnel that will be working on the assembly line and work on a marketing 
plan. Once the production line is running, [the beneficiary] will be responsible for supervising 
showrooms throughout the United States, managing the production line and quality control 
supervisors, overseeing the personnel and reviewing the books. 
' EAC 08 086 5 1393 
Page 16 
While this position description suggests that the petitioner expects the beneficiary to eventually oversee 
subordinate supervisors and various functions of the company, there is no evidence to support a conclusion 
that he would be performing such duties within one year. The petitioner does not indicate how many or what 
types of employees will be hired, when they will be hired, or when it intends to open "showrooms throughout 
the United States." Although the petitioner previously indicated that the U.S. company already has six 
employees, it has not identified their job titles, job duties, or provided evidence of their employment. Going 
on record without supporting documentary evidence is not sufficient for purposes of meeting the burden of 
proof in these proceedings. Matter of Soflci, 22 I&N Dec. 158, 165 (Comm. 1998) (citing Matter of 
Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm. 1972)). 
For all of the above reasons, the petitioner has not established that the beneficiary will be employed in a 
primarily managerial or executive capacity within one year, or that the U.S. company could support such a 
position. For this additional reason, the petition will be denied. 
The petition will be denied for the above stated reasons, with each considered as an independent and 
alternative basis for the decision. In visa petition proceedings, the burden of proving eligibility for the benefit 
sought remains entirely with the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. Here, that burden has 
not been met. 
ORDER: The appeal is dismissed.